Environment Law in the Northern Territory

Environmental impact assessment in the Northern Territory

Introduction

Actions in the Northern Territory that are likely to have significant impacts on the environment require environmental impact assessments to determine if and how they can proceed. Major developments such as large residential or industrial subdivisions, large-scale projects like gas plants, mines, land clearing and major public works will typically be subject to the Environment Assessment Act.

The environmental assessment process begins when a proposed action is referred to the Environment Protection Authority by a Minister of the Northern Territory Government (called the ‘responsible Minister’). For example, the Minister for Mines and Energy may refer an application for a mining project to the Environment Protection Authority.

When a proposed action is referred, the Environment Protection Authority decides whether or not the development is capable of having a significant impact on the environment. Actions that are capable of having significant impacts on the environment will be assessed according to the process set out in the Environmental Assessment Administrative Procedures.

The Environment Protection Authority decides the level of assessment for the proposed action. There are two levels of environmental assessment in the Northern Territory – assessment by a Public Environmental Report or assessment by an Environmental Impact Assessment. The Environment Protection Authority or the Minister for Lands, Planning and Environment may decide that an inquiry is also required to assess the environmental impacts. There are opportunities for members of the public to comment on both the scope of the environmental assessment and the environmental assessment itself.

Once a proposed action has been assessed, the Environment Protection Authority prepares an Assessment Report and provides it to the Minister for Lands, Planning and Environment. The Minister for Lands, Planning and Environment may comment on the Assessment Report. The Minister for Lands, Planning and Environment must then provide the Assessment Report together and any comments to the responsible Minister.

The responsible Minister decides whether or not to approve the development. If approved, the recommendations of the Assessment Report may inform the conditions that are imposed on any consent granted.

When does the Environmental Assessment Act apply?

The Environmental Assessment Act and the Environmental Assessment Administrative Procedures apply to ‘proposed actions’ that are capable of having a significant effect on the environment. Environment is defined to mean “all aspects of the surroundings of man [sic] including the physical, biological, economic, cultural and social aspects.”

Proposed actions covered by the Environmental Assessment Act are:

the formulation of proposals

the carrying out of works and other projects

the negotiation, operation and enforcement of agreements and arrangements (including agreements and arrangements with, and with authorities of, the Commonwealth, the States and other Territories)

the making of, or the participation in the making of, decisions and recommendations

the incurring of expenditure

Who decides whether a proposed action should be assessed?

The Environment Protection Authority is responsible for deciding whether a project or ‘proposed action’ requires environmental assessment and, if so, the level of assessment necessary under the Environmental Assessment Act and Environmental Assessment Administrative Procedures Act. The Environment Protection Authority must consult with advisory bodies and the responsible Minister prior to making its decision.

The Environment Protection Authority must consider whether a proposed action has the potential to have a significant effect on the environment. If the Environment Protection Authority decides that the proposed action requires environmental assessment, it must notify the public in newspapers and in other ways it considers appropriate.

The Environmental Assessment Procedures

The Environmental Assessment Administrative Procedures regulate the process that the Environment Protection Authority must follow in assessing a proposed action. The Administrator of the Northern Territory determines the content and any changes to the Environmental Assessment Administrative Procedures. The Environmental Assessment Act permits the Environmental Assessment Administrative Procedures to be varied from time to time.

The responsibilities of the Environment Protection Authority when assessing the environmental impacts of projects

The assessment process that must be followed by the proponent when the Environment Protection Authority directs a proponent to prepare either a Public Environmental Report or an Environmental Impact Statement

The matters the proponent needs to address in a Public Environmental Report or an Environmental Impact Statement

Public consultation

The procedure the Environment Protection Authority must follow to produce the Assessment Report and provide it to the responsible Minister

The ability of the Minister for Lands, Planning and Environment to comment on the Assessment Report

Who can refer a proposal?

The environmental impact assessment process is started when a proponent applies for approval of a proposed action under Northern Territory legislation. A proponent may be a person, organisation or agency responsible for the development of a proposed action (or project).

When a proponent applies for approval, the Minister who is responsible for administering that legislation (called the responsible Minister) refers the development proposal to the Environment Protection Authority. For example, the Minister for Lands, Planning and Environment may refer development consent applications to the Environment Protection Authority.

In practice, the initial referral by the responsible Minister to the Environment Protection Authority is called a ‘Notice of Intent’. The Environment Protection Authority publishes ‘Information Guidelines for a Notice of Intent’ .

Where a project is not referred to the Environment Protection Authority, the Environment Protection Authority has the power to direct the responsible Minister to refer a proposed action to the Environment Protection Authority. This may occur when the Environment Protection Authority becomes aware of a matter which could be a proposed action and “calls in” a proposed action by asking for a Notice of Intent.

Is a Notice of Intent available to the public?

Generally, there is no requirement under the Environmental Assessment Administrative Procedures for the Minister to publish a Notice of Intent. The public will only become aware of a proposed action if it goes on to be assessed by way of either a Public Environmental Report or an Environmental Impact Statement.

When is a Public Environmental Report or an Environmental Impact Statement required?

The Environment Protection Authority determines whether or not the proposed action is capable of having a significant impact on the environment after considering the Notice of Intent. The Environment Protection Authority sets out the factors it considers when reviewing the Notice of Intent (‘Initial Notification of Proposed Action‘), as follows:

The processes inherent in the proposed action such as inputs and outputs, and subsequent on-site or off-site effects on the environment; and

Issues such as, statutory planning, heritage, public health, water resources, water quality and resource management.

The Environment Protection Authority must consult with advisory bodies and the responsible Minister about the necessity for environmental assessment. The Environment Protection Authority then writes to the proponent and the Minister for Lands, Planning and Environment (who notifies the responsible Minister) advising that a Public Environmental Report or Environmental Impact Statement is necessary. Alternatively, the Environment Protection Authority may advise that no level of environmental assessment is required.

Proposals which could affect areas of high conservation value, endangered species, including wetlands, coastline, marine, arid areas, estuaries, and areas containing important or unique flora and fauna communities.

Proposals which could affect important historic, cultural, archaeological, scenic, scientific or educational sites.

Proposals which are likely to have a major impact on the social environment of surrounding or nearby communities.

Proposals which may involve a significant risk or hazard to public safety and the environment.

What happens next if a Public Environmental Report or Environmental Impact Statement is required?

Once the Environment Protection Authority determines that either a Public Environmental Report or Environmental Impact Statement is required, it prepares a description of the matters relating to the environment which must be dealt with in the Public Environmental Report or the Environmental Impact Statement (referred to by the Environment Protection Authority as ‘draft guidelines’).

Public comment on matters relating to the environment– ‘draft guidelines’

The public, the proponent and relevant advisory bodies all have an opportunity to comment on the matters relating to the environment (‘draft guidelines’) prepared by the Environment Protection Authority.

The Environment Protection Authority must publish a notice in the newspapers which includes the following information:

That a Public Environmental Report or Environmental Impact Statement is required.

That a description of the environmental issues that need to be assessed is available for public comment.

That interested persons may make written submissions not later than 14 days after the notice is published in the newspaper.

Any interested person can make a written submission on the matters relating to the environment (‘draft guidelines) not later than 14 days after publication of the notice in the newspaper. If the guidelines also consider the Commonwealth Environment Protection and Biodiversity Conservation Act 1999, there may be a longer date for submissions which will be set out in the notice.

The Environment Protection Authority must take into account any submissions received from interested persons and has 14 days after the submission period closes to consider any written submissions.

Matters relating to the environment – ‘final guidelines’

After reviewing any written submissions from interested persons, the Environment Protection Authority must review and revise the matters relating to the environment and direct the proponent to prepare the Public Environmental Report or Environmental Impact Statement in accordance with those reviewed matters relating to the environment (‘final guidelines’).

The Environment Protection Authority must set a deadline for the proponent to submit the Public Environmental Report or Environmental Impact Statement. The proponent must then prepare a Public Environmental Report or Environmental Impact Statement. There may be some time between the issue of the final guidelines and the preparation of the Public Environmental Report or Environmental Impact Statement.

Public access to the Public Environmental Report or Environmental Impact Statement

Once a proponent has prepared a Public Environmental Report or Environmental Impact Statement, it must make the report publicly available. The proponent must notify the public by publishing notices in newspapers. The public has an opportunity to make submissions on a Public Environmental Report or Environmental Impact Statement.

For a Public Environmental Report, the submission period is 28 days after the date of publication of the notice. For Environmental Impact Statements, the submission period is set out in the notice and must be a minimum of 28 days after the date of publication of the notice.

The assessment procedures for a Public Environmental Reports and Environmental Impact Statements are different, explained below.

Assessment by Public Environmental Report

The Environment Protection Authority must review the Public Environment Report during the public notice period (28 days). As part of this review, the Environment Protection Authority may consult with other agencies and ‘advisory bodies’, request further information from the proponent and request comments from other people or agencies.

The Environment Protection Authority must provide an assessment report about the proposed action to the Minister for Lands. Planning and Environment. In making the assessment report, the Environment Protection Authority must take into account public submissions, the results of an inquiry (if there was an inquiry) and any further information or comments from other people or agencies requested.

The assessment report is due to the Minister for Lands, Planning and Environment either 14 days from the end of the public notice period or, if the Environment Protection Authority requested further information from the proponent or from other people, the assessment report is due 14 days after the further information is received (whichever is the later).

The Minister for Lands, Planning and Environment may comment on the assessment report and must provide the report to the responsible Minister.

Assessment by Environmental Impact Statement

Once the public notice period for an Environment Impact Statement (28 days or more) has expired, the proponent must prepare a supplementary report taking into account any written submissions and if there was an inquiry, the results of that inquiry. The supplementary report is due on a date agreed between the Environment Protection Authority and the proponent.

The proponent must provide the supplementary report to the Environment Protection Authority, the responsible Minister and agencies and anyone else as directed by the Environment Protection Authority. (At the time the Environment Protection Authority provides the final guidelines as to the assessment process to the proponent, the Environment Protection Authority also directs the proponent as to who the supplementary report should be provided to as well). The supplementary report together with the initial environmental impact statement form the final environmental impact statement.

The Environment Protection Authority must examine the final environmental impact statement in consultation with any advisory bodies it considers appropriate. Within 21 days of receiving the final environmental impact statement, the Environment Protection Authority may request further information from the proponent or request comments from a suitably qualified person or organisation regarding the environmental impact statement.

Within the relevant period, the Environment Protection Authority must make the assessment report about the proposed action and provide the assessment report to the Minister for Lands, Planning and Environment. The Minister for Lands, Planning and Environment may comment on the report and must provide the assessment report together with the comments to the responsible Minister. (The relevant period is 35 days from the day the Environment Protection Authority receives the statement, further information from the proponent or a longer period as agreed whichever is the longer.)

The Environment Protection Authority must notify the public about its assessment report through a notice in the newspaper saying that the assessment report has been made and where it is available.

What happens if a proposed action is altered?

If a proponent alters its proposal so that the environmental significance of the proposed action is changed, it must inform the Environment Protection Authority and can only proceed with the altered proposed action in accordance with directions from the Environment Protection Authority. The Environment Protection Authority can also ‘call in’ an altered proposal in consultation with the responsible Minister if the proponent has not informed the Environment Protection Authority or the responsible Minister of the altered proposal.

The Environment Protection Authority must reconsider the environmental significance of the proposed action not later than 14 days after receiving details of the alteration. The Environment Protection Authority must consult with the Minister for Lands, Planning and Environment and relevant advisory bodies. The Environment Protection Authority must then decide whether or not a new Public Environmental Report or Environmental Impact Statement is required to assess the alteration to the proposed action and inform the responsible Minister and proponent.

Who makes the final approval decision for an action?

At the end of the assessment process, the Environment Protection Authority is responsible for preparing an assessment report about the proposed action. The Environment Protection Authority provides the assessment report to the Minister for Lands, Planning and Environment. The Minister for Lands, Planning and Environment may comment on the Assessment Report. The Minister for Lands, Planning and Environment must then provide the assessment report together with any comments to the Responsible Minister.

The power to refuse or approve a proposed action sits with the Responsible Minister who is responsible for approving the project that has been assessed by the Environment Protection Authority. For example:

the Responsible Minister for mining applications is the Minister for Mines and Energy

the Responsible Minister for development applications is the Minister for Lands, Planning and Environment

the Responsible Minister for aquaculture projects (e.g. fish harvesting) is the Minister for Primary Industry and Fisheries

the Responsible Minister for land clearing applications is the Minister for Lands, Planning and Environment

Inquiries

The trigger for an inquiry is if the Environment Protection Authority or the Minister for Lands, Planning and Environment forms the opinion that a proposed action cannot be determined except by inquiry. If the Environment Protection Authority or the Minister for Lands, Planning and Environment decides to hold an inquiry, the inquiry will be conducted under the requirements of the Northern Territory Inquiries Act. Where an inquiry is held for this purpose, the Minister for Lands, Planning and Environment is deemed to be the Minister responsible for administering the Inquiries Act.

The Minister may appoint a Board of Inquiry to assess the proposed action and provide terms of reference setting out the matters for inquiry to the Board of Inquiry. The Board of Inquiry is not bound by the rules of evidence and may inform itself on any matter as it thinks fit. This means that a Board of Inquiry is not as strict about what statements and documents people can provide compared to a hearing in a court which is bound by the rules of evidence.

With the approval of the Board, a person may be legally represented at a Board of Inquiry and the lawyer may question witnesses on behalf of that person.

The Board has the power to have “full and free access” to any place, books, documents and other papers for the purpose of the inquiry. The Board may summons “any person” to attend the Board and if summoned, the person must give evidence and produce any books or documents within that person’s control. If a person summoned before the Board of Inquiry fails to attend the Board of Inquiry without a “reasonable excuse” or to produce documents relevant to the inquiry, he or she is guilty of an offence.

The Board may direct the whole (or part) of the Board of Inquiry be heard in private if the Board considers it is “desirable in the public interest” to do so.

Public access to environmental assessment records

The Environment Protection Authority is required to keep records of environmental assessment records which can be inspected by any person at its offices. These records are:

Each proposed action where the Environment Protection Authority requires a Public Environmental Report or an Environmental Impact Statement.

An alteration to a proposed action and the reassessment of the altered proposed action.

Each assessment report prepared by the Environment Protection Authority.